Willis v Cross & Ors

J U D G M E N T

1. LORD JUSTICE TUCKEY: This is a renewed application by the claimant in these proceedings, Graham Willis, for permission to appeal from a judgment of Her Honour Judge Moir given in the Newcastle County Court in which she dismissed his personal injury claim against the defendants, who are the trustees of the Corn Exchange in Alnwick. These premises include a flight of steps alongside the building over which there is a public right of way.

2. On 11th January 2001 the claimant tripped and fell over a length of pipe lying on the steps. At the time of this accident the trustees and other volunteers were carrying out demolition work inside the building for which they had hired a skip, which had been placed outside the building in an adjoining yard. The judge found that the pipe had not come from the demolition, but had been put in the skip by someone unknown and then removed by someone else and discarded on the steps.

3. The claim for breach of the Occupier's Liability Act was not pursued at trial and the judge dismissed the claim in negligence on the ground that the skip was similar to those routinely seen in residential streets. To impose liability upon the hirer of a skip for the acts of others, in unlawfully placing and removing items from it which later caused injury to another party, was not justified or appropriate.

4. The applicant accepts this finding, but says that the judge should have found that the defendants were in breach of various statutory duties imposed by the Construction (Design and Management) Regulations 1994 and the Construction (Health, Safety and Welfare) Regulations 1996.

5. The 1994 Regulations specifically exclude civil liability for anything other than (so far as is relevant to this case) Regulation 16(1)(c). That Regulation requires the principal contractor appointed for any project to take reasonable steps to ensure that only authorised persons are allowed into any premises where construction work is being carried out. The judge held that the defendants were not the principal contractor for the purpose of this Regulation. I think she was right about this and that is the end of the point based on this Regulation. But I very much doubt whether it could be said that construction work was being carried out where the skip was sited, at least at the time when the pipe was put in and taken out of it.

6. Various provisions of the 1996 Regulations are relied on, but these Regulations are primarily for the protection of those working on the construction site and not for those, like the applicant, exercising a public right of way nearby. Thus, Regulation 3(1) says that they apply to construction work carried out by a person at work. Regulation 5, relied on by the applicant, relates to safe places of work. The applicant was not working on the steps. The reference to "no person" in Regulation 5(3), relied on by Mr Banning for the applicant, is obviously, if one reads it in the context of the Regulation as a whole, referring to no person working on the site. Similar reasoning applies, it seems to me, to Regulations 6, 10 and 26, which are the other regulations relied upon.

7. For these reasons, like Lord Justice Mance who refused permission to appeal on paper, I conclude that the judge was right to dismiss the claim for breach of statutory duty. This was a claim which, if it was to succeed, could only do so under the 1957 Act or in negligence. It did not do so for the sensible reasons given by the judge which are now accepted. There is no real prospect of this court disagreeing with the judge's conclusion on any aspect of the claim, and so I would refuse permission to appeal.

8. LORD JUSTICE LONGMORE: I agree.

Order: Application for permission to appeal is refused.